The execution of the final order in inventory proceedings is governed by the Portuguese Civil P. C., even though there is no specific provision for execution in Chapter XVII of the Code, which deals with inventory proceedings.

Headnote:
INVENTORY PROCEEDINGS - EXECUTION OF FINAL ORDER - PROCEDURE - PORTUGUESE CIVIL P. C. ARTICLES STILL GOVERN.
Fact of the Case:

In an inventory proceeding under Portuguese Civil P. C., a final order allotted a house to the respondent. The petitioner, who was in possession of the house, refused to vacate it, claiming that he was entitled to withdraw the owelty money deposited by the respondent before vacating the house. The respondent filed an execution application under the Portuguese Civil P. C. to enforce the final order.
Finding of the Court:

The court held that the execution of the final order in inventory proceedings is governed by the Portuguese Civil P. C., even though there is no specific provision for execution in Chapter XVII of the Code, which deals with inventory proceedings. The court reasoned that the execution is a continuation of the inventory proceedings and that it would be illogical to apply a different procedure for execution.
Issues: Whether the execution of the final order in inventory proceedings is governed by the Portuguese Civil P. C. or the Indian Civil P. C.
Ratio Decidendi: The court held that the execution of the final order in inventory proceedings is governed by the Portuguese Civil P. C. because: * Inventory proceedings are not suits, and there is no decree passed in such proceedings. * The execution of a final order in inventory proceedings is not a separate proceeding, but rather a continuation of the inventory proceedings. * The Portuguese Civil P. C. contains provisions for the execution of orders, even though such provisions are outside Chapter XVII, which deals with inventory proceedings. * It would be illogical to apply a different procedure for execution in inventory proceedings than the procedure that was used to conduct the inventory proceedings.
Final Decision: The court dismissed the petitioner's revision application and directed the petitioner to deliver vacant possession of the house to the respondent.

Judgement Key Points

Key Points: - The court held that the execution of the final order in inventory proceedings is governed by the Portuguese Civil P. C., as a continuation of inventory proceedings. [4000331440029] - Inventory proceedings are distinct from suits; there is no decree in inventory; thus execution cannot be under Order 21 of the Indian Code. [4000331440024] - If the Portuguese Code provisions for execution outside Chapter XVII apply, they are not repealed by the Extension Act and govern execution; example cited that Article 904 may apply by implication. [4000331440028] - The final order in inventory is enforceable by an execution proceeding within the Portuguese Code framework, not under the Indian Code's execution regime. [4000331440029] - The court directed delivery of vacant possession to the respondent and dismissed the revision, noting the final order is res judicata and the execution is governed by Portuguese Code provisions. [4000331440030]

Question 1?

How to determine the governing execution law for final orders in Goa inventory proceedings: Portuguese Civil Procedure Code or Indian Civil Procedure Code?

Question 2?

What is the appropriate basis for executing a final inventory order: continuing under Portuguese Code provisions outside Chapter XVII, or switching to Indian Code procedures (e.g., Order 21) for execution?

Question 3?

What are the legal consequences of applying Portuguese execution provisions to inventory final orders, and does such application preserve or repeal rights under the Portuguese Code after extension?

ORDER:- Once Inventory proceedings are determined by final order, what procedure is to be followed for execution of the final order of the Inventory, is the moot question raised in this case: whether proceedings lie under the Civil Procedure, Code, 1908 or those Articles of Portuguese Civil P. C. outside Chapter XVII still govern such proceeding.

2. By the impugned Order dated 22nd November, 1983 the Civil Judge, Senior Division, Mapusa, in execution taken in Inventory No. 35/72 under Portuguese Civil P. C. directed the Bailiff to evict the petitioner and restore possession of the house to the respondent to whom it is allotted by the final order made in the Inventory.

3. One. Tomas Pereira, having died, Inventory proceedings No. 35/72 were commenced before. the Civil. Judge, Mapusa. The final order in the said inventory bears the . date of 29th November, 1982. This final order represents the allotment, of the assets of the late Tomas Pereira as made in the chart of partition and distribution of assets left behind him.

4. Of the various assets described is the Item No. 115, a house situated at Saligao admittedly allotted to the respondent. It also transpires that the respondent had to deposit/pay an owelty amount (tormas) in the sum of Rupees 28,763.25 and some other interested party a further amount by way of owelty in. favour of the petitioner.

5. On 3rd February, 1983 the petitioner made an application for withdrawal and payment to him of the owelty money deposited by the respondent to which the respondent objected on the grounds that the petitioner is not entitled to such amount unless he restores the vacant possession of the house under Item No. 115 to the respondent. It is an admitted fact that on the date when the inheritance opened, the house has since been in occupation of the petitioner. The petitioner however contended before, the Judge that his withdrawal of the owelty money has nothing to do with his vacating the house in favour of the respondent and that these two are different unconnected matters.

6. About the same time, by his application dated 3rd February, 1983 the respondent prayed for possession of the said house (Item No. 11-5) in the same Inventory proceedings, thereby seeking to enforce the final order made in the Inventory, as he was entitled to do by that time having already deposited the owelty money.

7. The respondent's contention not to allow the petitioner to withdraw. the owelty amount failed before the Judge and he allowed the petitioner to withdraw the owelty money which the petitioner did in April, 1983. : -

8. The notice of execution filed by the respondent was served on Shri V.B. Thali, the learned advocate who was representing the petitioner in the said Inventory proceedings. The said notice directed the petitioner to file his say in the matter of the execution making it returnable on 4th March, 1983, However, on 4th March, 1983 Shri V.B. Thali, the learned advocate, who appeared for the petitioner in the inventory filed a memo contending that this being a notice in an execution proceeding it ought to be served on the petitioner in person and not on him, although he had represented the petitioner in the Inventory. He sought to bring the attention of the Judge in the said memo that in the execution a party is required to be summoned personally, According to him what is required to be served on the parties is styled as 'citacao' which is not same as 'notificacao', which could be served on the Advocate. Whereas the first summons is sated to 'citacao' which has to be served on the parties, 'notificacao" can be equated to notice and can be served on the Advocate representing the party. According to him if execution is resorted to, Court is bound to issue 'citacao'.

9. However, on the same day, a little later the same Advocate on behalf of the petitioner presented another petition in the proceeding, averring that the assets left by the deceased father were worth some lakhs of rupees, out of which he has b

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Judicial Analysis

1984 Supreme(Bom) 69

Bombay High CourtG.D.KAMATZacarias Durate Domingos Pereira - AppellantVersusCamilo Inacio Evaristo Pereira - RespondentDecided On : 02/23/1984